The Court Flees from Expletives

There is a vagueness at the heart of the Supreme Court ruling in Federal Communications Commission v. Fox Television et. al., which is odd—not because one expects clarity from the Justices but because the F.C.C. itself lost the case by being too vague. The Commission had changed its rules about when and why it would punish a broadcast network for “fleeting expletives” on television, nor had it made it clear that showing —“the nude buttocks of an adult female character for approximately seven seconds and for the moment the side of her breast”— was against its rules. To that extent, the Court was right. But this is how Judge Anthony Kennedy, in a decision joined by all eight judges who heard the arguments (Sotomayor was recused), described the first two incidents:

First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*\** ’em.” 613 F. 3d, at 323. Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”

So how does “a person named Nicole Richie”—when it comes to the word for her profession, the lack of clarity is forgivable—pronounce those words? Ess star star star? Ef asterisk asterisk asterisk-ing? We know, but the delicacy of the Court points to why the rules can be cripplingly confusing for broadcasters. (The fleeting expletives and images, and some of the arguments from the Second Circuit Court of Appeals, are in the video above.)

Later in the decision, Kennedy described an earlier ruling that

determined that the Commission’s presumptive prohibition on the F-word and the S-word was plagued by vagueness because the Commission had on occasion found the fleeting use of those words not indecent provided they occurred during a bona fide news interview or were “demonstrably essential to the nature of an artistic or educational work.”

Was there ever a sentence that asked for more clarity? If a Supreme Court judgment on a Constitutional issue is not “educational” (we’ll leave aside the question of art) or, if not an interview, at least “bona-fide news,” then what is? By referring to “the F-word” and “the S-word” rather than “fuck” and “shit,” Kennedy (and, perhaps, the Justices who signed on) only affirms that vagueness and irrationality are at the heart of the Court’s position, as well as that of the F.C.C. ABC and its affiliates were fined about a million dollars for those seven seconds of buttocks. Referring to the Commission’s decision to let other instances of nudity slide, Kennedy wrote,

This is not to say, of course, that a graphic scene from Schindler’s List involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue.

No, but the distinction is not as clear as the somewhat scornful tone applies. The “shower scene” was about what happens when a single, working father has a girlfriend stay over. Some might find that a question worth thought.

If the F.C.C. was too aggressive, the Court is too timid, in a way that goes beyond the use of typographical bleeps in the decision. It had an opportunity here to address First Amendment issues dating back to the crackdown on George Carlin’s 1972 monologue “Seven Words You Can Never Say on Television” (parts of which are in the video above) and dodged it, finding procedural refuge in the F.C.C.’s capriciousness: “These arguments need not be addressed here.” Ruth Bader Ginsburg disagreed, in a concurrence with the decision:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532-535 (2009) (THOMAS, J., concurring).

Ginsburg, at least, was clear.

The Court has only a few days left in its session, and some important choices to make. These include the ruling on the Constitutionality of health-care reform. Read Nathaniel Stein’s very amusing Supreme Court betting guide, and cast your #scotusbets on Twitter. Jeffrey Toobin is judging them and retweeting the best. My favorite so far may be from our own Alex Ross:

3-1: Justice Ginsburg delivers her dissent on #ACA as a Sprechstimme aria, with agonized atonal accompaniment #scotusbets

That would be something to hear.